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The Removal Process

Navigating the complex rules of U.S. immigration law is daunting, particularly when facing the possibility of removal or deportation. This process involves intricate legal steps, and an unfavorable decision could force you to leave the country. Knowledge about your rights and legal options can give clarity during this challenging time and may ease some of your concerns.

This section discusses the various aspects of removal proceedings. It aims to give you an understanding of the process and help you navigate your legal options effectively.

Know Your Options In the Deportation Process

Suppose you or your family member is at risk of deportation or removal. Learning about the steps you can take to defend your rights is essential. Many forms of relief available to those in removal proceedings are "discretionary." This means that the immigration judge has broad authority to choose to grant or deny requests. To get this type of relief, the burden of proof is on the immigrant to show that they are both eligible and merit the favorable exercise of discretion.

What is Removal in Immigration Law?

A removal proceeding is a legal action where an immigration judge decides whether the government will allow an immigrant to stay or deport them from the United States. The procedure often affects one's ability to maintain personal ties with the United States.

The proceeding happens when an immigrant violates U.S. immigration laws or commits criminal acts. Several circumstances or actions can trigger removal proceedings, including but not limited to:

  • The U.S. Citizenship and Immigration Services (USCIS) denied a conditional green card holder's adjustment of status to lawful permanent resident due to a finding of marriage fraud.
  • A student visa holder fails to leave the United States after completing their academic program.
  • A U.S. immigration officer arrested an unlawfully present immigrant.

Please note that we use the terms removal and deportation interchangeably in this article. It refers to the legal proceedings where the U.S. government expels or sends a non-U.S. citizen back to their home country.

What Happens During Removal Proceedings?

During the removal proceeding, the immigration judge decides whether the government should deport you from the country. Here, you can argue why deportation proceedings are improper or why you should stay in the United States. The removal proceedings typically have three critical stages:

Notice to Appear

The U.S. government starts the removal proceeding by issuing a Notice to Appear (NTA). The NTA contains allegations against the defendant, which will serve as the charging document. Some of the allegations could be violations of immigration laws, criminal laws, the United States Code (U.S.C.), and more. The notice will also include the date and location of the hearing.

Master Calendar Hearing

The first hearing with the immigration judge is a master calendar hearing. The immigration judge will assess the removal proceeding filed against you. The judge will determine if removal or deportation is proper. If the court finds no adequate relief from removal, the immigration judge could order expedited removal or deportation.

Individual Hearing

This part of the deportation proceeding is your last chance to make a stand against removal or deportation. So, the term "final immigration court hearing." During this step, the immigration judge accepts testimony and pieces of evidence to support the withholding of removal. For instance, you can discuss your eligibility for a U visa for being a victim of criminal activity or protections under the United Nations Convention against Torture if applicable to your case.

Understanding Discretionary Relief

Once the immigration judge finds you removable from the country, you may seek one or more discretionary reliefs. Generally, there are five types of discretionary relief:

  1. Application for waiver of grounds of inadmissibility
  2. Cancellation of removal
  3. Adjustment of status
  4. Voluntary departure
  5. Application for asylum

These forms of relief are available during a hearing with the immigration court:

Application for Waiver of Grounds of Inadmissibility (Form I-601)

People whose qualifying family members would experience extreme hardship due to their removal from the country may qualify for a waiver of specific grounds of inadmissibility. The "601 Waiver" may fix bars from prior unlawful presence and some criminal convictions.

In the context of the 601 Waiver, extreme hardship refers to hardship beyond the typical effects of a person's removal. The hardship of separation from family and financial strain are typically not enough to qualify for the waiver. Severe medical conditions or extreme conditions in the country of removal may help establish extreme hardship.

Cancellation of Removal

Cancellation of removal is the process where an immigrant may apply with the immigration court for adjustment of status from a deportable immigrant to that of a lawful permanent resident.

Note that the U.S. Code has different requirements for cancellation of removal. The requirements may differ if you are a non-permanent resident compared to a lawful permanent resident. The immigration judge also has the discretion on whether they will deny or grant the applications for removal. During this process, the court considers various factors. Among them are the length of residence in the United States, family ties, and community service, among other things.

Adjustment of Status

Adjustment of status allows those physically present in the U.S. to apply for lawful permanent residency or to be a U.S. citizen. This form of relief is available to eligible immigrants with visa or U.S. visa petitions approved.

Voluntary Departure

Voluntary departure is the option where a person may leave the country at their own expense within the time given by the immigration judge. This option allows the person to avoid some of the harsh consequences of deportation, such as being barred from legally re-entering the country. It will preserve one's right to apply for reentry in the future without the legal prohibitions that come with a deportation order.

Asylum

Those facing removal proceedings who can't return to their country of origin because of credible fear of persecution may apply for asylum. To apply for this form of relief, the person should complete an application for asylum and withholding of removal.

Each form of relief has specific eligibility. The requirements may also vary in each case. So, it is crucial to seek legal advice from an immigration law attorney.

Seek Legal Advice From an Immigration Law Attorney

When facing removal proceedings, it is important to seek the legal services of an experienced immigration attorney. Immigration cases can be complex, and severe consequences could result. With advice from an immigration lawyer, you can better understand the potential consequences of the final order of an immigration judge.

An immigration attorney can also offer a wide range of immigration services. For instance, they can help you with adjusting your immigration status, naturalization or appealing your case to the Board of Immigration Appeals. Their expertise is invaluable, especially when dealing with the complex rules of the U.S. Department of Homeland Security (DHS).

Learn About The Removal Process

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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